I've been meaning to write about the O'Dwyer TVShack extradition decision since District Judge Purdy made his
ruling on Friday but I'm still (and sadly looking likely to continue to be) buried in zombie bureaucracy. Catherine Lee at Jeremy Phillips' ever reliable IPKat blog, however, has done a
terrific analysis and pretty much saved me the job. Mr O'Dwyer challenged the extradition order on 3 grounds (see section 3 of Judge Purdy's ruling):
"Firstly that this Request is not an extradition offence(s) per S.78(4)(b) Ex Act 2003 i.e. the complaints do not meet the dual criminality requirement of the conduct being, if committed in this jurisdiction, an offence(s) here as well as in the U.S.A. Secondly that it would be “unjust or oppressive” by virtue of the passage of time from the alleged offences to extradite for trial per S.82 Ex Act 2003. Thirdly that it would be disproportionate to order extradition and thus breach his Article 8 ECHR (family life) Convention rights as enshrined in the Human Rights Act 1998 and per S. 87(2) Ex Act 2003. A material gloss, if I may so term it, on this third challenge is a submission that if any offence(s) is/are to be prosecuted such can/should take place in this jurisdiction, the so called forum issue."
The passage of time argument was unlikely to pass muster and
precedent meant the odds were against him on article 8 but I originally thought he had a fair case on the dual criminality issue. He still might have on appeal but as IPKat succinctly explains the key question will be the interpretation of
Section 107 of the Copyright, Designs and Patents Act 1988:
"Dual Criminality: for this Kat, this was arguably the most intriguing aspect of the case. Counsel for the US Government argued that the substantive offence committed by Mr O'Dwyer was contained in s. 107(2A) of the Copyright Designs and Patents Act 1988::
'A person who infringes copyright in a work by communicating the work in public
(a) in the course of business, or
(b) otherwise than in the course of business but to such an extent as to affect prejudicially the owner of the copyright commits an offence if he knows or has reason to believe that, by doing so he is infringing copyright in that work'.
Counsel for Mr O'Dwyer sought to refute this by relying on 'mere conduit' exception as set out in
Regulation 17 of the Electronic Commerce (EC Directive) Regulations 2002 and applied at first instance in the Gloucester Crown Court in
R v Rock & Overton (2010) (the
TV Links case, noted by TorrentFreak
here). Counsel also submitted that Mr O'Dwyer did not 'make available' copyright material that came from remote websites.
Counsel for the US Government went very close to arguing that
TV Links was wrongly decided. In any event, Counsel sought to distinguish Mr O'Dwyer's behaviour from the restrictive decision in
TVLinks. First the TVShack websites were entirely in the hands of Richard O’Dwyer and his co-conspirators, requiring third parties to sign up to TVShack and be vetted before going further. Secondly, unlike
TVLinks, there was no attempt to protect copyright, as Mr O'Dwyer knew materials were subject to copyright and actively taunted already-cited efforts in June 2010 to seize TVShack.net.
In a short conclusion, Judge Purdy found in favour of the US Government. He stated:
'To my mind there is much in the distinction factually, always remembering these matters are allegations of conduct which a trial court alone can resolve – that Mr Jones contends between the instant matter and Rock & Overton. I also have in mind the mischief Parliament had in mind. Accordingly in my judgement I am satisfied the conduct alleged in the instant request meets the dual criminality test and would be an offence in this jurisdiction'.
[...]
This Kat was looking forward to a more rigorous discussion of the meaning of 'communicating the work in public' in s 107(2A). She notes that the Copyright and Trade Mark Enforcement Notebook for Trading Standards Officers prepared by the Federation Against Copyright Theft (FACT, whose self-stated 'primary purpose is to protect the United Kingdom’s film and broadcasting industry'), available here on the UK Intellectual Property Office (IPO), website states (at 8) that:
The offence in s107(2A) is now available as a tool to trading standards officers to prosecute uploading file sharers of digital product, such as film and music, whether or not they do so in the course of a business.
As such, this understanding from an organisation which is in favour of IP owners is that s. 107(2A) would not cover the encouragement of others to download film and TV program files from third party websites.
The IPKat asks the $64,000 question: what is your understanding of 'communicating the work in public' in the context of s 107(2A)?"
I hadn't fully appreciated that FACT favored an interpretation of s107, at least in the context of their advice to trading standards officers, that would work to Mr O'Dwyer's advantage.